Legal opinion may see rerouting of Galway bypass

The proposed N6 Galway city outer bypass will almost certainly need to be rerouted following a legal opinion by a European Court advocate general that the current plan breaches the EU habitats directive.

Advocate general Eleanor Sharpston found in favour of environmental activist Peter Sweetman, who claimed that a designated special area of conservation (SAC) near Lough Corrib would be adversely affected by the road.

Mr Sweetman had challenged An Bord Pleanála’s decision to approve the scheme in November 2008, but lost in the High Court. He appealed to the Supreme Court, which then referred the matter to the European Court of Justice (ECJ).

The Supreme Court sought the ECJ’s guidance on what criteria should be used to assess whether the plan would adversely affect the integrity of the SAC, and whether the precautionary principle would prohibit development in such circumstances.

In her opinion Ms Sharpston said the Supreme Court was seeking to establish whether, having carried out an “appropriate assessment”, An Bord Pleanála was entitled to approve a plan that would damage the Lough Corrib site.

In its 2008 decision, the appeals board concluded that while the N6 route would have a “localised severe impact” on part of the SAC, it would “not adversely affect the integrity of the site”.

Having reviewed the purpose and meaning of the EU habitats directive, Ms Sharpston wrote: “There is, in the present case, no dispute that, if the road scheme is to proceed, a part of the habitat will be permanently lost.”

The advocate general concluded that the ECJ should advise the Supreme Court that “an effect which is permanent or long-lasting must be regarded as an adverse one” and, in reaching such a determination, “the precautionary principle will apply”. It would be most unusual for the ECJ to reject an advocate general’s opinion.